Citation: R v Dagg (a pseudonym) [2019] NSWCCA 132
Court: NSW Court of Criminal Appeal
Date: 21 June 2019
Judges: Leeming JA; Davies J; Button J
Background
The respondent, a 24-year-old New Zealand citizen, pleaded guilty to attempted aggravated robbery, stealing from a person, and dishonestly obtaining property by deception arising from offences committed on 12 July 2017. At sentencing in September 2018, the respondent received a 15% discount split equally between past and future assistance, reflecting both his cooperation with police and an undertaking to give evidence against his co-offenders.
The respondent was sentenced to a total effective term of 2 years, 6 months and 15 days with a non-parole period expiring on 14 April 2019. His undertaking had already contributed to one co-offender's guilty plea. When the second co-offender's sentencing proceedings were heard in April 2019, the respondent was called to give evidence but refused to cooperate, saying "no comment" in response to questions and later claiming he had been affected by drugs when he signed his undertaking.
Because the respondent's visa had been revoked, he was placed in immigration detention at Villawood Detention Centre after his non-parole period expired, pending the outcome of the Crown's appeal. The Crown appealed under s 5DA of the Criminal Appeal Act 1912 (NSW), seeking to have the 7.5% future-assistance discount removed from the sentence.
Legal Issues
- Whether the respondent's undertaking extended to giving evidence at the sentencing of his co-offender, not just at trial
- Whether the respondent's failure to give evidence constituted a deliberate breach of his undertaking
- Whether, given the respondent had already served 61 days in immigration detention beyond his parole entitlement date, the Court of Criminal Appeal should exercise its discretion to intervene and increase the sentence
Decision
The Court accepted that the respondent's failure to cooperate at the co-offender's sentencing hearing was unfavourable to the Crown. The respondent's undertaking, in standard Stavropoulos form, extended to "any proceedings" against the co-offender, which the Court found could encompass a sentencing hearing. The Court did not accept the respondent's argument that his undertaking was limited solely to trial evidence.
However, the Court identified two significant factors that weighed against intervention. First, the undertaking had not been entirely without value. The respondent's cooperation had contributed to one co-offender pleading guilty, and the second co-offender also entered a guilty plea before trial. The benefit of his assistance, while reduced, could not be discounted to zero.
Second, and critically, the respondent had already spent 61 days in immigration detention beyond the date on which he was legally entitled to be released on parole under State law. The net additional detention the Crown's appeal would achieve, as of the hearing date, was only 17 days. The Court held it would be wrong to resentence the respondent as though those 61 days of deprivation of liberty counted for nothing, even though they arose under Commonwealth immigration law rather than the State correctional system.
Weighing these considerations together, the Court concluded this was a clear case where the discretion to intervene should not be exercised, and dismissed the appeal.
Orders Made
- Crown appeal dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that a standard Stavropoulos undertaking to give evidence at "any proceedings" against a co-offender is capable of extending to sentencing hearings, not only to trials.
- In dismissing the appeal, the Court gave full weight to time spent in immigration detention beyond a parole entitlement date, treating it as equivalent to time served for the purpose of assessing any resentencing outcome.
- A future-assistance discount is not automatically forfeited where an undertaking is breached: courts will consider whether the undertaking still contributed some benefit, such as inducing a co-offender's guilty plea.
- Under s 5DA of the Criminal Appeal Act 1912 (NSW), even where a Crown appeal against sentence is established in principle, the appellate court retains a discretion to decline to intervene where the practical effect of resentencing would be minimal or unjust in all the circumstances.
- Where an offender's immigration status means that time spent in detention after a parole date is attributable to the Crown's own appeal, that detention will be taken into account when calculating the real benefit the Crown seeks to recover.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5DA
- Crimes Act 1900 (NSW), ss 94, 95, 192E
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Evidence Act 1995 (NSW), s 38
- Migration Act 1958 (Cth), s 254
Cases:
- R v Dimakos (a pseudonym) [2018] NSWCCA 78
- R v Stavropoulos [2007] NSWCCA 333